Tuesday, May 26, 2009

A court in Massachusetts (Taing v. Napolitano) has held that a woman from Cambodia could continue with her permanent residence application although her US citizen husband died before the paperwork was processed. The US immigration service (CIS) argued that Mrs. Taing no longer qualified as a "spouse" since her husband had died before the case was approved.

This controversial so-called "widow penalty" has been the subject of many news articles, listed here. The New York Times recently called on the government to end this penalty also.

Mrs. Taing entered the US in 2004. Later that year, she married her late husband and they filed the relevant immigration paperwork. Six months later, Mr. Taing tragically died, before the immigration filings were approved. USCIS denied the permanent residence application, on the basis that Mrs. Taing was no longer a "spouse."The US Court of Appeals for the First Circuit agreed with the Sixth and Ninth Circuit court's views that the plaintiff in this situation remained a "spouse" and that she should not be penalized because CIS didn't adjudicate the case quickly enough.

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense. We do not believe that Congress intended for the speed at which immigration authorities attend to a pending application to be dispositive in determining when a surviving spouse like Mrs. Taing, who has diligently followed the rules, can qualify as [a spouse.] As our sister court has recently noted, the result the government seeks would "create[] an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending solely upon when the government grants the approval." Lockhart, 561 F.3d at 620 (quoting Robinson, 554 F.3d at 371 (Nygaard, J., dissenting)).